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Jury says photograph in newspaper was fair use

The San Jose Mercury News did not infringe copyright when it published a photograph from a book that it was reviewing, according to a ruling by a federal jury in San Francisco.11 Aug 2006

A portrait by Christopher Harris appeared, with permission, in a book by Paul Elie, The Life You Save May Be Your Own: An American Pilgrimage. When Mercury News reviewed that book in 2003, it published four photographs from the book, including Harris's shot of philosophical novelist Walker Percy. Harris sued, seeking $175,000.

Harris alleged copyright infringement and a breach of the Digital Millennium Copyright Act. He pointed out that his copyright notice had been removed from the photograph.

The newspaper argued that the use of the photo was covered by the 'fair use' provisions of copyright law and, according to US legal publication The Recorder, said it had printed Harris's name beside the photo in its review. The fair use principle allows commentary, parody, news reporting, research and education about copyrighted works without the permission of the author.

Reporting its victory on Monday, Mercury News quoted its attorney, James Chadwick: "This is a classic example of how newspapers use material that is sent to them every day. If a photographer or photo agency had veto over the use of these kinds of images, then newspapers would just stop using them and readers wouldn't get the visual information."

In UK law, fair use is known as 'fair dealing'. Under the Copyright, Designs and Patents Act of 1988, fair dealing with a work for the purpose of criticism or review, of that or another work or of a performance of a work, does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement.

OUT-LAW spoke to Janet Ibbotson, Managing Director of the Association of Photographers and Secretary of the British Copyright Council. She indicated that a newspaper using a photographer's work for reviewing a book in which the work appears would, in her view, be considered fair dealing under the UK law. "It sounds like fair dealing of a work for the review of another work," she said, pointing out that she was not familiar with the US ruling.

Fair dealing with a work – other than a photograph – for the purpose of reporting current events does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement. No acknowledgement is required in connection with the reporting of current events by means of a sound recording, film, broadcast or cable programme.

In 1997, News Group Newspapers was sued by a photographer, François-Marie Banier, for publishing his photograph of Princess Caroline of Monaco without prior permission, albeit the newspapers included an acknowledgement.

The court decided that the photograph was not used in The Sun to review or criticise the photograph itself; instead, it was plain copying and competing use with an attempt to disguise it as review and criticism. The court rejected The Sun's argument that it was common practice for newspapers to publish photographs in the event that the copyright owner was not contactable, with licence fees being paid afterwards.

Expertise in Copyright

Copyright is an extremely valuable, often unrecognised or misunderstood right which protects a whole range of original materials including written materials, software, artistic materials, music and dramatic works. It arises automatically without the need for registration in most countries and protects these materials from unauthorised copying. It is essential in business to identify such rights, ensure they are owned by the correct entity, properly protected, enforced and exploited.

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